Critique of the system of free movement

We have heard at an earlier stage of our course that the free movement of persons is a core element of the European Union’s internal market. As you can see on this chart, in legal terms, the free movement of persons consists of two subcategories, namely free movement for workers and freedom of establishment. As its name indicates, free movement for workers relates only to natural persons, that is, human beings like you and me. In contrast, freedom of establishment relates to both natural and legal persons. The latter are companies and firms who wish to engage in an economic activity in another state on a permanent, that is, not merely temporary or occasional basis.

As for natural persons, they can benefit from the freedom of establishment in order to be permanently active in another member state in a self-employed capacity. In our course, we will focus on the free movement of natural persons. It essentially means that nationals of an EU member state are free to look for and take up employment or self-employment in another EU member state just like the nationals of the host state. Notably, no quantitative limits are allowed with respect to such persons. Free movement of persons has been extended beyond the EU to certain non-Member States, namely fully to Iceland, Liechtenstein, and Norway through the EEA agreement and partially to Switzerland, notably through the Swiss-EU Agreement on the free movement of persons.

For Switzerland, this meant that for persons falling under this agreement, there was now a much easier regime for moving to the country than for other persons, for whom there were and still are quantitative limits. Whilst the regime of free movement appeared to be largely accepted for quite some time, more recently, increasing criticism was raised against it, both in and outside the EU. In the Swiss Federal Parliament, the Swiss People’s Party, SPP, in the year 2011 submitted a parliamentary initiative in order to change the Federal Constitution. The title of this initiative was ‘Stop Mass Immigration!’ Its aim was to introduce the principle of autonomous control of immigration through a combination of quantitative limits and national preference.

When the parliament did not decide in favour, the Swiss People’s Party decided to launch a popular initiative instead on the same issue. This time, the party was successful. First, it succeeded in collecting the necessary 100,000 signatures and then in convincing the people of the merits of the initiative. On the 9th of February 2014, the people voted in favour with a very thin majority, namely 50.3% out of 56.57% who participated in the vote, which was, however, supported by a very clear majority of the cantons. Remember that acceptance of a popular initiative requires a double majority, both of the people and of the cantons.

The arguments used by the SPP were essentially that an increase in the population of 80,000 persons per year through immigration is not sustainable for a country with about 8 million inhabitants, but rather puts pressure on infrastructure, land use, schools, and so forth. According to this party, Switzerland cannot cope with such growth neither in terms of quantity nor in terms of culture. The party set up a website to communicate its arguments. There, you can find pictures asserting rather plainly that because of immigration, additional need arises everywhere. Switzerland shall need more teachers, hospital beds, houses, and energy plants.

The website of the initiative also shows that one major point was to get rid of the system of free movement as set up by the Swiss-EU Agreement since a large number of the persons moving to Switzerland do so in the framework of this agreement. The party assumed that the EU would agree to changing the agreement along the lines of the initiative, and it said that it would not be necessary for Switzerland to denounce the agreement following the vote. Up north in the UK, Prime Minister Cameron used very similar arguments as the SPP in Switzerland. He pointed to the scale of immigration into Britain, namely some 300,000 persons per year.

He argued that this is not sustainable for a country with a population of about 65 million inhabitants, and he warned of pressure on schools, hospitals, and other public services. Initially, the prime minister advocated quantitative limits to immigration under EU law but changed course when it became clear that the EU would not accept changes to the very foundations of the system of free movement. The prime minister now stated that he supported the principle of free movement as a key part of the EU’s internal market, and he demanded that the EU finds ways to allow Member States to make changes to their social security systems that helped them to deal with this issue.

In November 2015, Prime Minister Cameron sent a letter with his demands to the president of the European Council, the top political institution of the EU. Migration is one of the issues addressed. In February 2016, the government of the UK and the other EU Member States agreed on a number of measures to accommodate the UK in the EU. Entry into force of these measures was made to depend on the UK’s decision to remain part of the EU. The vote took place on the 23rd of June 2016. Since we filmed this video for the first run of our course, much has happened. To vote in the UK resulted in a narrow majority in favour of leaving the EU.

Negotiations on the withdrawal agreement began in 2017. In November 2018, they led to a draft text which has since been the object of debate within the UK and in particular in the lower chamber of the UK Parliament, the House of Commons.

In March 2019, when we worked on the videos for the present rerun of our course, it was not clear what would be the outcome. In other words, when filming, we did not know when and under which circumstances the UK will withdraw from the European Union. For this reason, our videos cannot reflect the most recent state of things. We have, however, updated all other course materials that you can find online.